Citation Nr: 9821952
Decision Date: 07/20/98 Archive Date: 08/03/98
DOCKET NO. 96-02 947 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Whether new and material evidence has been presented to
reopen a claim for entitlement to service connection for a
psychiatric disorder.
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. Spear Ethridge, Associate Counsel
INTRODUCTION
The veteran had active duty from October 1970 to November
1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating actions by the Houston, Texas
Regional Office (RO) of the Department of Veterans Affairs
(VA).
This case was previously before the Board in June 1997, on
which occasion it was remanded for additional development.
In particular, it is noted that the case was remanded because
the veteran requested an additional hearing before a member
of the Board, and later the record was unclear as to whether
the veteran wished to withdraw his appeal entirely. In a
July 1997 statement, the veteran indicated that he did not
wish to withdraw his claim regarding whether new and material
evidence had been presented to reopen a claim for entitlement
to service connection for a nervous disorder; and in February
1998, the veteran was given the opportunity to testify at a
personal hearing before a member of the Board. Such
development having been completed, the case is now again
before the Board for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
Essentially, the veteran contends that he has submitted
evidence sufficient to reopen his claim for entitlement to
service connection for a “nervous condition” which he
contends is of service origin.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has submitted new
and material evidence sufficient to reopen a claim for
entitlement to service connection for a psychiatric disorder.
FINDING OF FACT
By a May 1973 rating decision, service connection for a
psychiatric disorder, then classified as a nervous disorder
was denied, and the evidence submitted since then goes to the
question of whether a psychiatric disorder is associated with
service, and, therefore, creates a reasonable possibility
that the outcome of the decision would be changed if the
claim were reopened.
CONCLUSION OF LAW
Evidence received since the May 1973 rating decision, which
denied service connection for a psychiatric disorder, then
classified as a nervous disorder, is new and material and the
veteran's claim for that benefit is reopened. 38 U.S.C.A.
§ 5108 (West 1991); 38 C.F.R. § 3.156 (1997).
REASONS AND BASES FOR FINDING AND CONCLUSION
In 1973, when the veteran’s case was initially reviewed, the
law granted a period of one year from the date of notice of
the result of the initial review or determination for the
filing of notice of disagreement; otherwise, that
determination became final and, the claim could not
thereafter be reopened or allowed, except as provided by
regulation. 38 C.F.R. § 19.118 (1973). A final action was
considered binding upon all field offices of the VA as to
conclusions based on evidence on file at that time and would
not be subject to revision on the same factual basis.
38 C.F.R. § 3.104 (1973).
Under the current and applicable law, the Secretary must
reopen a prior final disallowance of a final claim when “new
and material evidence” is presented or secured with respect
to the basis for the disallowance of that claim. See
38 U.S.C.A. § 5108.
New evidence, however, means more than evidence that was not
previously physically of record, and is evidence that is more
than merely cumulative. Colvin v. Derwinski, 1 Vet. App. 171
(1990). Alternatively, new and material evidence means
evidence not previously submitted to agency decision makers
which bears directly and substantially on the specific matter
under consideration, which is neither cumulative nor
redundant and which, by itself or in conjunction with the
evidence previously assembled, is so significant that it must
be considered in order to fairly decide the merits of the
claim. 38 C.F.R. § 3.156(a) (1997). The United States Court
of Veterans Appeals (Court) has provided court precedent on
this issue. To justify reopening on the basis of new and
material evidence, there must be a reasonable possibility
that the new and material evidence, when reviewed in the
context of all of the evidence, both new and old, would
change the outcome. Colvin, 1 Vet. App. at 171.
On a claim to reopen, a “two-step analysis” must be
conducted under section 5108. Manio v. Derwinski, 1 Vet.
App. 140, 145 (1991). First, it must be determined whether
the evidence presented or secured since the last final
disallowance of the claim is new and material. See Blackburn
v. Brown, 8 Vet. App. 97, 102 (1995); Cox v. Brown, 5 Vet.
App. 95, 98 (1993); Colvin, 1 Vet. App. at 174. Second, if
the evidence is new and material, the Board must then reopen
the claim and “review the former disposition of the claim,”
38 U.S.C.A. § 5108; that is to review all of the evidence of
record to determine the outcome of the claim on the merits.
See Jones (McArthur) v. Derwinski, 1 Vet. App. 210,
215 (1991).
In Justus v. Principi, 3 Vet. App. 510 (1992), the Court held
that, for new and material evidence purposes only, the new
evidence is presumed to be credible. Where the issue
presented in an application for service-connected disability
is factual in nature, e.g., whether an incident or injury
occurred in service, competent lay testimony, including a
veteran's solitary testimony, may constitute sufficient
evidence to establish a well-grounded claim under 38 U.S.C.A.
§ 5107(a). See Cartright v. Derwinski, 2 Vet. App. 24
(1991). However, where the determinative issue involves
medical causation or a medical diagnosis, competent medical
evidence to the effect that the claim is "plausible" or
"possible" is required. Murphy v. Derwinski, 1 Vet. App. 78
(1990). A claimant or other lay witnesses cannot meet this
burden imposed by § 5107(a) merely by presenting lay
testimony or other lay opinions because laypersons are not
competent to offer medical opinions. Espiritu v. Derwinski,
2 Vet. App. 492 (1992).
In Evans v. Brown, 9 Vet. App. 273 (1996), the Court held
that the first step of the Manio two-step process as to a
claim to reopen involves three questions. Question one is
whether the newly presented evidence is “new,” in that it
was not of record at the time of the last final disallowance
of the claim and is not merely cumulative of the other
evidence that was then of record. Id. Question two involves
whether the newly presented evidence is “probative” of the
issue(s) at hand; that is, each issue which was a specified
basis for the last final disallowance. Id. Question three
speaks to when the newly presented evidence is new and
probative, then, in light of all the evidence of record,
whether there is a reasonable possibility that the outcome of
the claim on the merits would be changed. Id. As to the
probatory inquiry posed by question two in Evans, the Court
held that the newly presented or secured evidence “must tend
to prove the merits of the claim as to each essential element
that was a specified basis for the last final disallowance of
the claim,” but that it “need not be probative of all
elements required to award the claim.” Id. at 283-84
(citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995),
affirmed per curiam, 78 F.3d 604 (Fed. Cir. 1996).
The veteran in this case had active duty from October 5, 1970
to November 25, 1970. He initiated a claim in April 1973 for
entitlement to service connection for a nervous breakdown
which he asserted having in 1971. In a May 1973 rating
action, the RO denied the claim for service connection for a
nervous condition and enuresis. It was stated that while in
service the veteran was seen for complaints of bedwetting and
nervousness. The RO indicated that the veteran was
“apparently” discharged from service for that disorder. No
medical records, other than the veteran’s service medical
records were on file at the time of the May 1973 rating
action. The service medical records indicate that the
veteran enlisted on October 1, 1970. At that time it was
noted that the veteran was clinically evaluated as normal for
psychiatric purposes, and all other respects. No
abnormalities were noted. In an October 28, 1970 notation,
it was noted that the veteran was a bedwetter and nervous.
He was recommended for an enuresis program. On November 20,
1970, it was noted that the veteran had been examined during
the past 60 days and it was determined that he was physically
qualified for separation from active duty. No defects were
noted which disqualified him from the performance of his
duties, nor had he suffered any injuries or illnesses during
his period of active duty. It was noted that the veteran was
discharged from service by reason of unsuitability. There
are no records which affirmatively indicate that the veteran
was discharged from service for nervousness and enuresis.
Based on this information, the RO denied the nervous
condition as being a constitutional or developmental
abnormality, which was not considered a disability under the
law. Handwritten on the May 1973 rating decision was that
the RO determined that the veteran was not eligible for
consideration under 38 U.S.C. § 312 (the presumption
statute), because he had less than 90 days of active service.
It is unclear whether that statement was a contemporaneous
writing because, the veteran was notified of the negative
rating decision by way of a May 1973 letter from the RO, and
the notification only stated that the nervous condition with
enuresis was not a disability for which compensation could be
paid.
The veteran did not thereafter appeal the decision, and the
May 1973 rating decision became the last final disallowance
of the veteran’s claim.
In January 1995, the veteran asked that the prior claim for
entitlement to service connection for a nervous condition be
reopened. In a March 1995 Deferred Rating Decision, the RO
noted that the veteran had less than 90 days of active duty
and that he was not entitled to presumptive service
connection if a nervous breakdown in 1971 was due to a
psychosis. In a March 1995 letter to the veteran, the RO
notified him that new and material evidence was necessary to
reopen his claim. In support of his claim, the veteran
submitted lay statements from his parents, and private
treatment and hospitalization records; which are discussed in
detail below.
In a July 1995 rating action, the RO determined that new and
material evidence had not been presented to reopen the
veteran’s claim. The veteran was notified of the same in
August 1995. In October 1995, the veteran disagreed with the
negative determination. In October 1995, the RO issued a
Statement of the Case on the matter, and the veteran
subsequently perfected the current appeal. The veteran also
testified at a personal hearing before the RO and at a
subsequent personal hearing before a member of the Board in
conjunction with his claim.
Pursuant to applicable regulations, the last final
disallowance of the veteran’s claim was in May 1973. Since
the last final disallowance, the following evidence has been
submitted for the record.
Private medical records reveal that on April 30, 1971, the
veteran was hospitalized and he underwent a brain scan and
received electroshock therapy. Very poor copies of the
corresponding hospital treatment records are of record, and
most of the records are handwritten and illegible. The
following can be gleaned from those records. The veteran was
18 years old at that time and was brought into the hospital.
He was brought in because he felt depressed. In the personal
history section it was noted that the veteran’s chief
complaints were nervousness and lack of initiative, with
headaches and suicidal gestures. On May 3, 1971 the veteran
underwent a series of psychological evaluations. He was
hospitalized until June 1971. On June 15, 1971, he underwent
a psychiatric examination. The diagnosis was chronic
undifferentiated schizophrenia. He was tearful and
dependent, without delusions of suicidal thoughts.
While the remainder of the records are illegible, there is a
clear typed written copy of the discharge summary.
Specifically, it shows that the veteran was hospitalized from
April 30, 1971 to June 16, 1971 for chronic schizophrenia,
undifferentiated type. It was noted that the veteran was
brought to Dr. O.’s office by his parents the day prior to
his admission because he felt nervous and depressed, and
because he had some suicidal gestures particularly for the
past three or four months. It was noted that the veteran had
felt that way since he was in the seventh or eighth grade of
school. It was noted that the veteran lacked initiative,
that he was withdrawn and easily irritable, and that he
smoked marijuana and had done so since the ninth grade. It
was reported that the veteran dropped out of school in the
tenth grade and joined the Marines. The veteran reported
that “at the end of 90 days he was discharged” and that he
thereafter attended vocational rehabilitation school for 9
weeks and then dropped out. It was noted that the veteran
underwent electric shock therapy and that he was under
several medications while hospitalized.
In a March 1987 letter from a private social worker, it was
noted that the veteran was being treated for major affective
disorder, unipolar, depressed, recurrent type.
In August 1987, a private physician, Dr. K, saw the veteran.
History revealed that the veteran had been embroiled in a
long arduous battle with his employers in an unsuccessful
effort to get worker’s compensation for a back injury. Later
in the interview it was noted by history that the veteran had
problems with depression in the past, and that during the
1970’s he was hospitalized for depression for 45 days.
Reportedly, the veteran had overdosed on drugs at the time of
hospitalization and found in his front yard screaming. It
was noted that the veteran’s current situation exacerbated
his affective disorder in that he cried daily, could not
sleep, and that he had lost weight and lost his hair.
Suicidal ideation was present and he had recently been
treated by another physician for depression. The diagnoses
were Axis I, major depression with psychotic features,
recurrent with Axis II obsessive compulsive personality
disorder and avoidant personality disorder.
In a February 1991 letter from a private social worker, it
was noted that the veteran still had major affective
disorder, unipolar, depressed recurrent type.
In February 1995, the veteran underwent an extensive private
psychological evaluation with a psychologist, Dr. C. The
veteran underwent a standardized series of psychological
tests. Detailed information about the veteran’s personal and
social life, educational background, and medical and
psychological information was noted in the report. Test
scores revealed that the veteran showed cognitive
deficiencies that restricted him in a variety of training and
employment opportunities. The diagnostic impression included
Axis I, major depression, recurrent, moderate; and Axis II
borderline intellectual functioning with paranoid personality
disorder.
In a lay statement received in June 1995 from the veteran’s
parents, it was noted that the veteran “had a good life
going for him since birth to before joining the Marine
Corp.” They stated that the veteran wet the bed during
childhood up until age 12 or 13. He saw several doctors for
the problem. They said that he began wetting the bed again
during basic training. After discharge they noted a big
change in him. Mentally, he was defensive, nervous,
depressed and different, and he wet the bed everyday. They
reported that the veteran was involved with drugs and that he
lacked motivation at work. They stated that the veteran had
a nervous breakdown and was admitted for 47 days of
hospitalization in 1971. They reiterated that the veteran
underwent psychiatric care and that he was given shock
treatments and medication while he was hospitalized. They
stated that the veteran had attempted suicide in the past.
The parents indicated that the veteran had not lived a normal
life during or after service.
In November 1995, the veteran’s parents submitted a second
lay statement wherein they virtually repeated verbatim what
was stated in the June 1995 statement. The veteran’s parents
again indicated that, in summary, the veteran’s life had
changed for the worst since he left the Marine Corps; and
that Marine Corps was to blame for all of his nervousness,
depression, psychological problems and drug and alcohol
addiction.
In a December 1995 letter, the veteran’s private
psychologist, Dr. C., reported a summary of 4 sessions that
he had spent with the veteran. The veteran was referred for
psychotherapy due to difficulties he had with management of
his emotionality. The veteran discussed past issues
concerning his difficulty with the government and he
discussed the difficulty he had being with people and social
interaction.
Records dated from February 1995 to March 1995 show that the
veteran received private treatment at the Texas
Rehabilitation Commission. While he was primarily seen for
the purposes of vocational rehabilitation, the veteran
reported a history of being traumatized in service. He
reported that he had a childhood problem with enuresis during
sleep which ended at the age of 14 and restarted in boot camp
due to stress he was under during basic training.
From December 1995 to April 1996, the veteran underwent
private counseling for his condition with a series of
physicians and counselors. The records show his status
during that time period and that the mental health
professionals attempted to counsel the veteran regarding his
current problems and plans for future employment.
In a January 1996 letter, the veteran’s private physician,
Dr. W., indicated that the evaluation of the veteran showed
that he had chronic paranoid schizophrenia with a history of
chemical dependency in remission.
In April 1996, the veteran underwent a private psychiatric
evaluation with Dr. Ol.. Mental status examination revealed
that the veteran was overtly disturbed with auditory
hallucinations, and a history of suicidal attempts, insomnia
and poor appetite. The diagnosis was schizophrenia, paranoid
type, with psychotic exacerbation.
In June 1996, the veteran testified at a personal hearing
before the RO. The veteran stated that the first time he
experienced nervous problems was in boot camp. Hearing
Transcript (T.) at 2. Prior to his enlistment, he had no
treatment for a psychiatric condition. Id. The veteran
indicated that he was knocked out of his bunk bed by the
superiors in charge and that they laughed at him even though
he bled and had bumps after the fall. The veteran stated
that he was admitted to Santa Rosa Medical Center in April
1971 for a nervous breakdown. T. 2. The veteran indicated
that he got flashbacks, that he was unable to hold a job, and
that he last worked in 1984. T. 3-4. The veteran indicated
that he was currently under private treatment for his mental
health. T. 4-7. He noted that he no longer saw Dr. Ol.
because he thought Dr. Ol. wrote things in his report that
were inadequate. T. 4-5.
In February 1998, the veteran testified at a personal hearing
before a member of the Board. He stated that he was 17 years
old when he went into the Marine Corps. T. 3. The veteran
indicated that he served in the Marines for 55 days, and he
described the basic training. Id. He slept on the top bunk
where he was knocked out of the bunk and where he hit the
concrete (floor) with his face and cut himself. T. 3-4. The
veteran indicated that he lay paralyzed while two drill
instructors laughed at him. T. 4. While laughing, the drill
instructors said profane and obscene things about his mother,
and others watched quietly. Id. He testified that the
profane comments upset him greatly because of his tight
family background and Catholic upbringing. Id. The veteran
indicated that the drill instructors did the same things to
other people. Id. The veteran described that “they” (the
drill instructors) took his food in chow hall and smashed the
plate in his face. Id. The veteran stated that they picked
on him all of the time and that he did not get a chance to
fully explain his experience during basic training at his
earlier personal hearing. Id. The veteran indicated that
the stress described above caused him to wet the bed during
the second week of boot camp. T. 4. The veteran testified
that instead of getting proper treatment for the bed wetting,
he was used as a clown; in that “they” would wake him up
every day and make him carry his mattress on his back. T. 5.
The veteran testified that he was also made to do push-ups as
they made fun of him rather than sending him to the infirmary
or doctor. Id. The veteran stated that he was made to go
through a line of recruits who stood in 2 lines and he had to
go through the middle while they hit him with their belt
buckles. T. 5. The veteran indicated that other people were
scared of “them,” too, but that others were afraid to say
anything. Id. The veteran admitted that he got into fights.
Id.
The veteran stated that there was an incident where “they”
(VA) stated that his mental condition and anxiety,
“schizophrenia,” manifested itself while he was a teenager;
but that his parents wrote a letter to VA and stated that he
had no prior mental health treatment. Id. The veteran
stated that he had never gone to any psychiatrist, and that
his problems began during service and continued after the
Marine Corps. T. 5. The veteran stated that his first
treatment to a mental hospital was following service
separation in April 1971, which was within one year of his
release from active duty. T. 6. Following service
discharge, the veteran testified that he heavily drank
alcohol and did heavy drugs. Id. The veteran stated that he
was aggressive and that his parents did not recognize him
because he was not himself; he was not the same person that
he was before. The veteran indicated that he came out of the
Marine Corps “unnormal,” and that he turned out to be a
“nut.” Id. The veteran indicated that he was normal when
he went into service and that when he came out he was unable
to hold a job, and he was afraid to be around people because
he was paranoid. Id. The veteran indicated that he received
Social Security disability benefits, and had done so since
the 1980’s. T. 6-7. The veteran indicated that his
psychiatric treatment was not with VA but with private
doctors. T. 7.
As indicated above, the Board has reviewed the veteran’s
record in its entirety. The Board finds that the evidence
received since the 1973 rating decision is new and material
with respect to the issue of entitlement to service
connection for a psychiatric disorder. The record at the
time of the original denial did not incorporate any of the
veteran’s post-service medical treatment, and in particular,
the private hospitalization records showing that the veteran
was hospitalized from April 1971 to June 1971 for the
treatment of schizophrenia is especially probative.
Specifically, all of the additional evidence submitted for
the record is new, because none of it was of record at that
time of the last final disallowance of the veteran’s claim in
1973. The additional evidence of record is also probative
because the medical records, lay statements, and testimony
pertain to the issue of what the veteran’s psychological
state of mind was during the 5 months immediately following
service separation. See Evans, 9 Vet. App. at 283. Being
new and probative leads to the third question of the Evans
analysis, which is whether there is a reasonable possibility
that the outcome of the claim on the merits would be changed
if the claim were reopened. Id. In response to that question
the Board finds in the affirmative. In 1973, and currently,
the RO indicated that the veteran would not be entitled to
presumptive service connection of an acquired psychiatric
disability, based on the fact that the psychiatric disability
occurred within one year of service separation, because he
did not have the requisite 90 days of service to make him
eligible for such a presumption.
Clearly, while that aspect of the case is procedurally
correct, the Board notes that there are other aspects to the
issue on appeal. What is before the Board at this time is
whether the veteran has presented new and material evidence
to reopen his claim, not whether any regulatory presumptions
would apply to his case. Even if, after the claim is
reopened, the veteran was barred from asserting any statutory
presumptions in this matter, he still would be allowed to
show that service connection for a psychiatric disability
could be granted on a direct basis, without the liberalizing
effects of the presumptive statute; if he showed the
requisite causal relationship between his inservice encounter
of nervousness and his post-service hospitalization 5 months
later.
Therefore, the Board answers the third question in Evans as
“yes” because the veteran had similar symptomatology,
namely nervousness, in service as he did upon admission to
the hospital from April 1971 to June 1971. In essence, the
evidence of a visit to the clinic in service for nervousness,
the evidence of an acquired psychiatric disorder within
5 months of service separation, with the same manifestations
as found in service, coupled with the veteran’s testimony
that he underwent stress in service due to possible
mistreatment by his superior officers, and his parents’
statements that the veteran had no problems other than a bed
wetting problem before service entrance, presents a
reasonable possibility of a change in outcome from the prior
RO decision. Accordingly, viewed in the context of all the
evidence, both new and old, the additional evidence of record
creates a reasonable possibility that the outcome of the
decision would be changed if the claim were reopened. See
Evans, 9 Vet. App. at 283; see also Caluza, 7 Vet. App. 506.
In this case, the recent action by the RO has been with
respect to the preliminary question of whether to reopen the
veteran's claim. Having now determined that new and material
evidence has been added to the record, the veteran's claim
for service connection for a psychiatric disorder is reopened
and the Board must conclude that further adjudication of this
matter may not be undertaken at this time. The Court has
found that if action by the Board involves a question not
previously addressed, and such action would be prejudicial to
the veteran, further due process must be provided. Bernard
v. Brown, 4 Vet. App. 384 (1993). In light of the
determination above, additional action on this claim need be
accomplished, and will be explained further in the remand
below.
ORDER
New and material evidence having been submitted, the claim of
entitlement to service connection for a psychiatric disorder
is reopened.
REMAND
The veteran's claim for service connection for a psychiatric
disorder must be adjudicated on a de novo basis by the agency
of original jurisdiction, without regard to the finality of
the prior decision. See Bernard, 4 Vet. App. at 393.
The facts of this case are stated in detail in the above
decision. The reason for the veteran’s early discharge from
service is somewhat unclear, other than the fact that he was
unsuitable for service; and although the service medical
records indicate that he was physically qualified for
discharge there is no service separation examination report
of record. The veteran’s parents have indicated that he had
an enuresis problem prior to service entrance and they deny
that the veteran had any psychiatric treatment at the time of
service entrance; they do note that he saw doctors prior to
service. Given the fact that the veteran was discharged so
shortly after service entrance for unsuitability and the fact
that he was hospitalized for schizophrenia 5 months after
service separation, raises questions of whether the veteran
entered service with an acquired psychiatric disorder which
was possibly aggravated in service and/or whether an acquired
psychiatric disorder manifested during service.
Ultimately, the Board determines that the veteran should be
afforded a comprehensive VA psychiatric evaluation in
conjunction with his claim for service connection, before a
disposition on the merits of this case can be made. To
ensure that VA has met its duty to assist the claimant in
developing the facts pertinent to the claim and to ensure
full compliance with due process requirements, the case is
REMANDED to the RO for the following development:
1. The RO should obtain the names and
addresses of all medical care providers
who treated the veteran for a psychiatric
since service separation. After securing
the necessary releases, the RO should
review the list, and in an attempt to not
duplicate any records, obtain any medical
records not yet associated with the
veteran’s claims file. If possible,
clear, legible records from the 1971
period of hospitalization at Santa Rosa
Medical Center should be obtained.
Additionally, the veteran should provide
the names and addresses of the several
doctors who treated him for enuresis
prior to service.
2. The RO should obtain from the Social
Security Administration the records
pertinent to the appellant's claim for
Social Security disability benefits as
well as the medical records relied upon
concerning that claim.
3. Through official channels, the RO
should make an attempt to secure the
veteran’s service separation examination,
if available, and any Medical Evaluation
Board or Physical Evaluation Board
records created pursuant to his discharge
from service.
4. After the above has been competed to
the extent possible, the veteran should
be afforded a comprehensive VA
psychiatric examination to determine, if
possible, the nature, severity, and date
of onset of his current psychiatric
disorder, variously diagnosed as
schizophrenia or affective disorder. The
claims folder, including any evidence
retrieved as a result of the above
development, must be made available to
the examiner for review during the course
of the evaluation. Any and all indicated
evaluations, studies, and tests deemed
necessary by the examiner should be
accomplished. After reviewing all
pertinent medical records, the examiner
is asked to specifically offer an opinion
with respect to: (1) whether there is
evidence that a psychiatric disorder
existed prior to service; (2) if so,
whether the disorder worsened during
service; (3) and if so, whether it was
due to the natural progress of the
disorder. If it is found that a
psychiatric disability did not preexist
service, the examiner should identify
when a psychiatric disability is first
shown, and if the onset is subsequent to
service discharge, the examiner should
provide an opinion as to the degree of
probability as to whether such
psychiatric disability is causally
related to service. A complete rationale
for all opinions expressed should be
provided, and if the questions asked
cannot be answered, the examiner should
so state.
5. After the development requested above
has been completed to the extent
possible, the RO should again review the
record. If any benefit sought on appeal,
for which a notice of disagreement has
been filed, remains denied, the veteran
and his representative should be
furnished a supplemental statement of the
case and given the opportunity to respond
thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action until
otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
M. Sabulsky
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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